Citation Nr: 1120513
Decision Date: 05/26/11 Archive Date: 06/06/11
DOCKET NO. 09-47 081 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois
THE ISSUES
1. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, right knee, with limitation of flexion.
2. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, right knee, with limitation of extension.
REPRESENTATION
Appellant represented by: Illinois Department of Veterans Affairs
ATTORNEY FOR THE BOARD
D. M. Donahue, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1980 to June 1982.
This appeal arises from rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) located in Chicago, Illinois. In a November 2007 decision, the RO granted service connection and assigned a 10 percent disability rating for a right knee disability.
In a November 2009 rating decision, the RO revised the Veteran's disability classification into two separately assigned 10 percent evaluations for limitation of flexion and limitation of extension. Nonetheless, the issues of entitlement to an initial rating in excess of 10 percent for limitation of flexion and 10 percent for limitation of extension for a right knee disability remains before the Board on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Courts are applicable to these claims.
In his November 2009 substantive appeal, the Veteran reported that he was currently receiving treatment for his right knee disability. The most recent records of VA treatment currently associated with the claims file are dated in June 2009. As any records of VA treatment since June 2009 are potentially pertinent to the appeal and within the control of VA, they should be obtained and associated with the claims file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
In his November 2009 substantive appeal, the Veteran also indicated that his right knee continues to deteriorate. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). It therefore is the judgment of the Board that the Veteran should be provided another VA joints examination to determine the current level of severity of his right knee disability.
Accordingly, the case is REMANDED for the following action:
1. The AMC/RO should contact the Veteran and obtain the names and addresses of all medical care providers, VA and non-VA, who treated him for his right knee disability since 2009. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review.
2. The Veteran should be afforded a VA joints examination to assess the right knee disability. All indicated tests and studies are to be performed, and a comprehensive recreational and occupational history is to be obtained. Prior to the examination, the claims folder and a copy of this remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examination must be conducted following the protocol in VA's Disability Examination Worksheet for VA Joints Examination, revised on December 9, 2009.
3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims.
4. After the development requested above has been completed to the extent possible, the AMC/RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and his representative, should be furnished a supplemental statement of the case and given the opportunity to respond thereto.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).